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Sunday May 28, 2023

Patenting AI: How US Patent System Evolves To Hold Up With the AI Revolution | ArentFox Schiff

The rise of synthetic intelligence (AI) purposes in recent times has been accompanied by a surge in patent filings by AI builders. However like many different rising applied sciences earlier than it, AI innovations face patent eligibility challenges. The US patent system exists to advertise innovation, and due to this fact has to evolve to encourage the event of this thrilling and doubtlessly revolutionary new know-how.

It could appear that AI purposes, like a generative AI chatbot ChatGPT and an AI picture generator DALL-E, lately appeared out of nowhere and astonished everybody with their extremely superior capabilities of conducting human-like conversations and producing inventive photographs. Nonetheless, the underlying applied sciences of those AI purposes, similar to synthetic neural networks, deep studying fashions, pure language processing, has been in improvement for years. Hundreds of patent purposes have been filed for AI-related innovations in america and worldwide for these and different applied sciences. Actually, in line with the 2022 AI Index Report from the Middle for Safety and Rising Know-how, the variety of AI-related patent purposes filed worldwide between 2015 and 2022 has practically doubled annually.

Nonetheless, the prosecution of AI-related patent purposes has been difficult in america as a result of strict material eligibility necessities utilized to software program innovations below 35 USC 101 in view of the US Supreme Court docket choice in Alice Corp v. CLS Financial institution (the Alice choice), which defines a two-step check for figuring out the patentability of software program innovations as follows: (1) decide whether or not the claims are directed to a patent-ineligible idea (e.g., an summary thought); and (2) decide whether or not the declare’s components, thought of each individually and as an ordered mixture, remodel the character of the claims right into a patent-eligible utility. Due to the broad interpretation of the idea of summary thought below the Alice check, many AI-based patent invention have been deemed patent ineligible.

Recognizing the significance of the AI know-how, the dramatic enhance in new AI patent filings, and utility examination challenges attributable to the Alice choice, the US Patent and Trademark Workplace (USPTO) revealed a report back to the US Congress in June 2022 addressing a priority that many AI-related innovations are “liable to patent ineligibility below the Alice two-step framework as a result of they might be characterised as strategies of organizing human exercise, psychological processes, or mathematical ideas, and thus could also be ineligible in the event that they fail to recite ‘considerably extra’ than these judicial exceptions.” The June 2022 report describes a examine performed by the USPTO by which it found that there was “a considerable lower in allowance fee for patent purposes containing AI following the Alice choice in June 2014.”

To scale back the Part 101 rejections of the AI and different software program innovations, the USPTO took preemptive actions by publishing the 2019 Revised Patent Topic Matter Eligibility Steering that clarifies the idea of the summary thought, primarily based on the physique of Federal Circuit choice decoding the Alice check and educates the USPTO examiners learn how to correctly consider the patent eligibility of AI-based and different software program invention. Specifically, the brand new steerage clarifies that an summary thought falls inside one the next three teams: mathematical ideas – mathematical relationships, mathematical formulation or equations, mathematical calculations; sure strategies of organizing human exercise – elementary financial ideas or practices (together with hedging, insurance coverage, mitigating threat); or psychological processes – ideas carried out within the human thoughts (together with an statement, analysis, judgment, or opinion).

Moreover, the Revised Steering gives a number of examples of AI innovations together with correct material eligibility analyses. For example, Instance 39 describes a declare for a technique for coaching a neural community for facial detection having the next steps: “accumulating a set of digital facial photographs …; making use of a number of transformations …; creating a primary coaching set …; coaching the neural community in a primary stage utilizing the primary coaching set …; making a second coaching set for a second stage …; and coaching the neural community in a second stage utilizing the second coaching set.” The accompanying material eligibility evaluation states that this declare is patent eligible as a result of “the declare doesn’t recite any mathematical relationships, formulation, or calculations…. [any] psychological course of… [nor] any technique for organizing human exercise.” Following the publication of the Revised Steering, the USPTO allowance fee of patent purposes containing AI elevated by about 8%.

The Patent Trial and Attraction Board (PTAB) has additionally offered choices that deal with 101 challenges. For instance, in Attraction 2018-003323 of US App. No. 14/735,002, which describes programs and strategies for bettering the transcription of speech into textual content utilizing AI, PTAB reversed a 101 rejection alleging that the claims are directed to a mathematical idea and a psychological course of (e.g., a human listening to an audio file and transcribing the audio information into textual content). PTAB acknowledged “even when the claims have been thought of to recite a mathematical idea, below prong two [of the Alice test] the claims will not be directed to an summary thought as a result of the alleged judicial exception is built-in right into a sensible utility….[T]he claims of the present utility embrace particular options that have been particularly designed to attain an improved technological end result… and supply enhancements to that technical subject.”

Whereas the US patent system progressively evolves to guarantee satisfactory safety of the AI innovations, it’s a activity of patent attorneys to maintain abreast of the USPTO examination developments, and essential PTAB, Federal Circuit, and Supreme Court docket choices associated to the patentability of AI innovations so as to successfully draft and prosecute AI patent purposes in anticipation of potential 101 rejections.

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